NPF & ORS v. OMOTOSHO & ORS
(2018) LPELR-45778(CA)
Issue
CONSTITUTIONAL LAW – ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S) –
Whether an action for the enforcement of fundamental rights can be commenced by originating summons where facts are disputed and contested
Principle
“In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587 at 595 the Apex Court stated as follows: “A Court is competent to adjudicate when – (a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and (c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”
The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined.
A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has.
Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence.
Competence of the Court is the handmaiden of the jurisdiction of the Court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction.
The contention of the Appellants is that the action which was commenced by Originating Summons, in circumstances where the facts are disputed and contested, was not initiated by due process of law and that it was a feature that prevented the Court from exercising jurisdiction: MADUKOLU vs. NKEMDILIM (supra).
Accordingly, since it involves an issue of jurisdiction, it can be raised for the first time on appeal, notwithstanding the fact that it was not raised at the lower Court. See FBN PLC vs. TSOKWA (2004) 5 NWLR (PT 866) 271 at 302 and ADETONA vs. I. G. ENTERPRISES LTD (2011) 7 NWLR (PT 1247) 535 at 561.
Howbeit, raising the contention is one thing while the question of whether the contention is well founded in law is an entirely different kettle of fish. We will find out in a trice if the Appellants contention in this regard is sound law. Now, Order II Rule 2 of the FREPR on the mode of commencement of an application for the enforcement of fundamental right provides as follows: “2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of the Rules, lie without leave of Court” So by the above provision an application can be commenced by any originating process accepted by the Court, in this instance the Federal High Court. Order 3 Rule 1 (1) of the Federal High Court (Civil Procedure) Rules, 2009 provides as follows: “1 (1) Subject to the provisions of any enactment, civil proceedings may be begun by writ, originating summons, originating motion or petition or by any other method required by other rules of Court governing a particular subject matter.” The instant action which was commenced by originating summons was commenced by one of the originating processes accepted by the Court. However, the contention of the Appellants, as I understand it, is that originating summons was not suited for the hearing of the action because the facts were contested and disputed. Doubtless, it is settled law that originating summons is not to be resorted to in hostile proceedings but is only suited for actions where the facts are not contested. See NATIONAL BANK OF NIGERIA vs. ALAKIJA (1978) 9-10 SC 39 at 71, MICHAEL vs. MOMAH PROJECTS VENTURES LTD (2002) 24 WRN 71 at 81, OSSAI vs. WAKWAH (supra) and DAPIALONG vs. DARIYE (2007) LPELR (928) 1 at 46.
What then is the effect where an action in which the facts are disputed is commenced by originating summons? As rightly submitted by the Appellants counsel, in such an instance the trial Court is to convert the originating summons to a writ of summons and order pleadings to be filed: NATIONAL BANK vs. ALAKIJA (supra) and EMEZI vs. OSUAGWU (supra).
So the effect would not be to defeat the action. However, the question of whether the facts are contested requiring pleadings to be ordered is entirely within the discretion of the trial Court. Order 3 Rules 7 and 8 of the Federal High Court (Civil Procedure) Rules, 2009 stipulate as follows: “7. Any person claiming any legal or equitable right in a case where the determination of whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration of the right claimed.” “8. A Judge shall not be bound to determine any such question of construction if in the Judge’s opinion it ought not to be determined on originating summons but may make such orders as the Judge deems fit.” The Appellants argue that in the face of the controversy in the affidavits filed by the parties, the lower Court ought to have ordered pleadings so that the evidence adduced would be subjected to a process of refinement in the furnace of cross-examination.
It is pertinent to state that the mere filing of a counter affidavit does not automatically make the facts disputed and requiring oral evidence and ordering of pleadings. See IKPEAZU vs. EKEAGBARA (2016) LPELR (40847) 1 at 39-40 and BOB vs. AKPAN (supra). The issue of whether a Court is to convert an originating summons to a writ of summons because the facts are contested remains within the discretion of the Court. Where the facts in an affidavit are self-contradictory, it cannot be proof of any facts on the basis of which the facts can be said to be contested or disputed. See ROYAL EXCHANGE ASSURANCE (NIG) LTD vs. ASWANI TEXTILE IND. LTD (1992) LPELR (2960) 1 at 17-18, ISRAEL vs. ORURUO (2017) LPELR (42484) 1 at 43 and EBURUEKWE vs. IBEABUCHI (2018) LPELR (44687) 1 at 35.
The lower Court in exercise of its discretion, held that the counter affidavit filed by the Appellants was self-contradictory and that there was no need to call oral evidence. Hear the lower Court on pages 151-152 of the Records: “It has to be realised that the exhibits attached to the counter affidavit are as much part of that affidavit and must be considered as such. See UNIVERSITY OF ILORIN V. OYALANA [2001] FWLR [Pt.83] 2193. The law is trite that where a party has filed affidavit that is self contradictory, it is taken that the affidavit has destroyed or weakened the party’s case and there is no need calling oral evidence. See ARJAY LTD V. A.M.S LTD [2003] FWLR [Pt 156] 943 S.C.
Besides, a party who has ‘self-created contradictions’ in this affidavit has the burden to explain the contradictions, else the issues in contention will be ruled against him. See MIMAH V. VAB PETROLEUM INC. [2000] 2 & 3 SCNJ 2000 at 222.
In the instant case, the Respondents’ affidavit evidence is contradictory on material points and therefore leaves no basis for calling oral evidence as they contended.” Having so exercised discretion that there were no disputes as to facts in the affidavits, the lower Court rightly heard the matter as commenced by originating summons.
In any event, I iterate that even if the lower Court was wrong, which I have held that it was not, the commencement of the action by originating summons cannot defeat the action.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 30 – 36 Paras B – F)